The California Labor Commissioner’s Office recently issued new guidance regarding the application and administration of the state’s paid sick leave law. The new guidance addresses the interplay between the law and grandfathered employer part time off (“PTO”) plans, as well as the interaction between employers’ disciplinary policies on employees’ use of paid sick leave.
Grandfathered PTO Plans
As for PTO plans that employers had in place at the time the law went into effect on January 1, 2015, the Labor Commissioner reinforced the statutory language (found at Cal. Lab. Code § 246(f)). Specifically, the Commissioner confirmed that if, at the time the law became effective, an employer already had an existing PTO plan that made an amount of paid leave available that could be used for as many or more days and under the same or more favorable conditions than those specified in the law, that employer may continue to use the PTO plan and does not have to provide additional paid sick days in order to satisfy the law’s requirements.
As for grandfathered PTO plans, the Commissioner also explained that the paid sick leave law addresses only the rate of pay that must be paid for time taken off as paid sick leave (Cal. Lab. Code § 246(l)). Therefore, if an employer is providing paid sick days through a grandfathered PTO plan, the paid sick leave law has no impact on the rate of pay the employer must pay for days that an employee takes off under the plan for purposes other than paid sick days, such as vacations or personal holidays.
Discipline for Unscheduled Absences
Finally, the Commissioner addressed the issue of discipline for an employee’s unscheduled absence from work as it relates to the paid sick leave law. Specifically, the Commissioner clarified that the law does not protect all time off taken by an employee for illness or related purposes. Rather, it prohibits disciplinary action only with respect to an employee’s use of accrued and available paid sick leave under the statute. Therefore, an employer may not impose discipline for an unscheduled absence that occurs for purposes specified under the paid sick leave law (see Cal. Lab. Code § 246(l)) and for which the employee has available and uses accrued paid sick leave time. The employer, may, however, impose discipline for unscheduled absences that occur for reasons other than those enumerated in the law, or for which the employee does not have or does not use accrued and available paid sick leave time.
Employers should note that local ordinances and state and federal disability and leave laws may further impact the employer’s obligations regarding the above items.